Parnell v. United States

• Citation: 64 F.2d 324
• Decision Date: 10 April 1933
• Docket Number: 602.,No. 601,601
• Parties: PARNELL v. UNITED STATES. HAYS v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

64 F.2d 324 (1932)

PARNELL v. UNITED STATES.

HAYS v. SAME.

Nos. 601, 602.

Circuit Court of Appeals, Tenth Circuit.

August 1, 1932.

On Rehearing April 10, 1933.

L. M. Gensman and J. H. Cline, both of Lawton, Okl. (W. C. Stevens, of Lawton, Okl., on the brief), for appellants.

Herbert K. Hyde, U. S. Atty., and D. E. Hodges, Asst. U. S. Atty., both of Oklahoma City, Okl.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

COTTERAL, Circuit Judge.

Appellants, Dorsey Parnell and Gordon Hays, seek a reversal of convictions upon an indictment charging them and twenty-seven others with conspiring to manufacture and deal in whisky, in Tillman county, Okl., continuously from June, 1929, to October 7, 1930. Five of the defendants were not apprehended; seventeen pleaded guilty; seven were tried, and of those there was a disagreement as to P. V. Ruch; Jake Streiber, Lee Slade, and John C. Bellah were acquitted; Jake Bock and the appellants were found guilty.

The indictment charges that the conspiracy was formed in Tillman county, Okl. Details are added as to the means of consummating it. It is alleged that county officers — P. V. Ruch, county attorney; Charles Wages, the sheriff; Bud Walls, deputy sheriff; and R. S. Rogers, a constable — were parties to the conspiracy and were for protection money to co-operate and assist in the illegal whisky transactions; that Parnell, Bock, Hays, Streiber, and others were to own and operate a large still on the farm of Holmes Tidwell, that he was to receive $250 a month, the officers were to receive $400 a month, and Walls and Rogers were to be the collectors from all the liquor establishments in the county. Certain persons named were to make the sales at various places in the county and others were to operate the stills thereon. Five overt acts are alleged, one of them being that on December 20, 1929, Parnell, Bock, Hays, and Streiber possessed a 1,200-gallon still on the Tidwell farm in the county.

The appellants complain that they were denied a bill of particulars. It appears to have been ordered but furnished only to other defendants. The refusal to make or enforce the order in favor of the appellants affords no ground of reversal. The allowance of a bill of particulars rests generally in the discretion of the court, unless such discretion has been abused. Wong Tai v. United States, 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545. The indictment clearly apprised the defendants of the facts relative to the conspiracy and enabled them to prepare their defense. There was no abuse of discretion in the ruling of the court.

The appellants do not claim that the indictment charges more than a single conspiracy. But they insist it was error to overrule their motions for directed verdicts on the two grounds, that the evidence proved separate and distinct conspiracies; and, in any event, there was not sufficient evidence of their guilt. But if there was only one conspiracy and the appellants were parties to it and there was the overt act to make it effectual, the convictions were justified. Marcante et al. v. United States (C. C. A.) 49 F.(2d) 156; United States v. Wills (C. C. A.) 36 F.(2d) 855.

The contentions impose on us the burden of reviewing the evidence. It is too elaborate to be recited in detail, and it will suffice to notice material portions of it. The testimony of Bud Walls, one of the defendants who pleaded guilty, covers most of the transactions. He was a deputy of Sheriff Charles Wages; R. S. Rogers was a constable; P. V. Ruch was county attorney. All were officers of Tillman county, Okl. We proceed with Walls' account.

Walls and Rogers first agreed upon making collections from gambling devices and division thereof four ways. Rogers said, "I can take care of the sheriff." Walls said, "I can get to the county attorney." He said to Rogers: "Let's stop this little five-and ten-dollar stuff with gambling games; let's get into something bigger; if you are going to make money it is as bad to make little money as big money." And Rogers agreed.

Then follows a narration of transactions consisting of a systematic plan for obtaining money from liquor violators in exchange for protection given to them in the illicit business of operating whisky stills and selling the product at various places in Tillman county.

These parties first obtained a warrant for the search of a place where Elmer Couch and Blackie Noel kept a quantity of whisky and beer. Walls collected $50 from Noel. He said the matter was talked over with Ruch, and he arranged to pay Ruch one-fourth of the protection money collected, and to pay half to Rogers, who was to divide with the sheriff. He divided the $50, giving Rogers $25 and Ruch $12.50, and kept $12.50.

They next forced the Robisons, who had three stills, to pay them money and collected on an average of $200 a month for several months. It was likewise divided. These parties were arrested by other officers. Some of them were punished and in some instances releases were obtained for them by Walls and Rogers.

Couch introduced Walls to Jake Bock in November, 1929, near the Red River bridge. John Bellah came to Walls and asked to open up a still in the county for Bock and Parnell. Walls first declined on account of their associates. Later, he agreed to let Bock open up for $400 a month, on terms none of the whisky was to be sold in Tillman county. Bock paid Walls the $400, half of which Walls turned over to Rogers for him and the sheriff, and he paid Ruch $100 out of the collection. In pursuance of the arrangement, the still location was made on Tidwell's farm. Walls drove with his wife to the place and viewed the still, which was then fired up. Bock and Streiber were there. In about ten days Walls was at this still again. Bock told Walls he had thirty days to serve at Hobart, and he would let Dorsey Parnell, his partner, take charge of his place, and he introduced Parnell to Walls, and the latter introduced him to Rogers, saying, "Here is Dorsey Parnell; the one Jake (Bock) was talking about," and Parnell said, "We will get along all right." The next payment for the still, $400, was made to Walls in December. His wife was there. Walls called Rogers to his home and gave him $200 and Ruch $100.

Later, that still was raided. Brown, a negro, also called Cuba, had given the information about it. Ruch said he would have to file on Bock and on Tidwell. Walls talked with Bock, in Ruch's presence, and said something had to be done for him, and he talked also with Attorney Wilson. Ruch said the negro could beat the case and they must get rid of him. Later, Walls asked Bock to tell the county attorney and Rogers what he was paying, and he answered $400 a month. Bock said the negro's bond was $750. Ruch offered to arrange for a cash bond of $375, and Bock said he would go better than that and put up $400. Bock gave Walls $50 as a fee and said the negro would not be there.

Walls next saw Parnell at Chickasha in January. Walls got drunk there and was put in jail. Parnell signed his bond. Walls and Ruch later attended the Pottawatomie county whisky trial at Oklahoma City to get pointers. At Chickasha, Ruch and Walls met Dorsey Parnell and Gordon Hays, whom Parnell introduced. Parnell told Ruch that Cuba was taken care of, and he had got or would get Cuba out of the county. Cuba disappeared.

Bill Campbell wanted to sell whisky. Walls and Rogers refused his request, but nevertheless he operated a place. He was put in jail, but Walls had him released through Ruch and Rogers. Walls collected from Campbell $100 a month and divided it with Ruch. Others paid tribute and it was divided. There were collections from them and in some instances they were jailed.

Rogers' testimony was largely corroborative of that of Walls, and especially with regard to the agreement, the collections, and the division of money. He said two payments were made to him on the Bock and Parnell still. He also testified to the making of the cash bond for Cuba. At Lawton, he met Parnell, who said Bock wished to talk with him (Rogers). Rogers talked from Indiahoma with Bock, who asked him to arrest a negro who had stolen Parnell's car, but he mistakenly thought Rogers was at Frederick. Parnell came and talked to Rogers, saying the negro had stolen his car, was supposed to leave, would leave now, and he was going to take him to Chickasha.

Wages testified to receiving money from Rogers on several occasions, two or three hundred dollars all told, but was not advised as to the source. When he was handed money in November, 1929, Rogers told him, "there is going to be a big still come into this county." Wages turned the negro out on a cash bond. He had talked to the negro at the jail. Wages had a warrant for Tidwell, but he did not arrest him, as he was supposed to be protected. He came in later. In one instance, Rogers gave him $100 and said, "That still is here," and when he asked where it was, Wages was told he need not know.

Mrs. Bud Walls gave testimony for the government. It was corroborative of the testimony of her husband, respecting the collections and the plan on foot.

Holmes Tidwell testified to living on a farm ten miles out from Frederick. He had an arrangement with Bock to be paid $250 a month for running the still. Frank Muse told him they would pay him or some one in Tillman county about $1,000 to build a still there. He told Muse to have them come there, as he needed the money. Bock, Parnell, and Muse came. Parnell and Bock stepped off the building to find out how many barrels of mash it would hold. The deal was made and the still was set up. Then Gordon Hays came and helped to put up the still. He was there two or three days, and Parnell only four or five times. Streiber operated the still, and he hired the negro Cuba, another negro, and a white cook. Bock paid Tidwell $250. Tidwell was later arrested and pleaded guilty.

Mrs. Tidwell testified the still was operated in their barn,...